scholarly journals The new international legal order and new states in the Balkans

2006 ◽  
Vol 58 (3) ◽  
pp. 272-293 ◽  
Author(s):  
Dusko Dimitrijevic
Keyword(s):  
International Law ◽  
Essential Role ◽  
Legal Order ◽  
State Behavior ◽  
The Balkans ◽  
Starting Point ◽  
New States ◽  
International Legal Order ◽  
The One ◽  
Further Development

In this study the author attaches a great importance to the theoretical examination of the concept of the New International Legal Order that was embodied in the last decades of the 20th century. The starting point for that reflection is the dissolution of the SFR Yugoslavia that illustrates one of the fundamental legal precedents. Reminding that the basic principle for the post-modern State behavior must be the one that includes minimal disturbance of the existing international legal relations, the author stresses that "the Yugoslav case" was customized in the way to respond to the new reality where the principle of effectiveness played an essential role in valuation of the statehood. It could also be one of the greatest catalysts for all further 'development rules' of international law.

Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory

2014 ◽  
Vol 108 (3) ◽  
pp. 389-434 ◽  
Author(s):  
Pierre-Hugues Verdier ◽  
Erik Voeten
Keyword(s):  
International Law ◽  
Legal Order ◽  
Explanatory Theory ◽  
State Behavior ◽  
Customary International Law ◽  
The Social ◽  
International Legal Order ◽  
Social Scientific ◽  
Vital Element ◽  
Affect State

Customary international law (CIL) is widely recognized as a fundamental source of international law. While its continued significance in the age of treaties was once contested, it is now generally accepted that CIL remains a vital element of the international legal order. Yet CIL is also plagued with conceptual and practical difficulties, which have led critics to challenge its coherence and legitimacy. In particular, critics of CIL have argued that it does not meaningfully affect state behavior. Traditional CIL scholarship is ill equipped to answer such criticism because its objectives are doctrinal or normative—namely, to identify, interpret, and apply CIL rules, or to argue for desirable changes in CIL. For the most part, that scholarship does not propose an explanatory theory in the social scientific sense, which would articulate how CIL works, why states comply, and why and how rules change.

Francisco Suárez S.J. on the End of Peaceful Order among States and Systematic Doctrinal Scholarship

2017 ◽  
Author(s):  
Tobias Schaffner
Keyword(s):  
International Law ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
Legal Order ◽  
State Action ◽  
Peace And Justice ◽  
Starting Point ◽  
International Legal Order ◽  
Francisco Suarez

This chapter argues that the work of Suárez, like that of other theologians and natural lawyers, offers an insightful (albeit imperfect) articulation of the values of peace and justice which continue to underpin the international legal order. Suárez reminds us that the practical reasoning of all upright statesmen, citizens, and lawyers is guided by the idea of a peaceful and just order among states. Peace and justice are potentialities which individuals and whole nations can establish and preserve, as well as fail to establish or preserve, through their co-ordinated actions. His work remains insightful precisely because most of today’s accounts of international law neglect the role of peace and justice as a starting point of legal reasoning, a goal of state action, and even a source of international law.

Part IV Debates, Ch.48 Fragmentation and Constitutionalization

2016 ◽  
Author(s):  
Peters Anne
Keyword(s):  
International Law ◽  
Real World ◽  
Legal Order ◽  
The Other ◽  
The Real ◽  
International Legal Order ◽  
The One ◽  
Negative Connotation ◽  
Law Making ◽  
Legal Processes

This chapter discusses fragmentation and constitutionalization—which are understood to be two trends in the evolution of international law. ‘Fragmentation’ has a negative connotation, and is used as a pejorative term (rather than diversity, specialization, or pluralism). ‘Constitutionalization’, in contrast, feeds on the positive ring of the concept of constitution. Both constitutionalization and fragmentation are terms that describe not only legal processes in the real world of law but are also labels for the accompanying discourses (mostly among academics, less so among judges, and even less so among political law-making actors). The putative trends so far do not have a clearly definable end-result, such as a completely fragmented international legal order on the one hand, or a world constitution on the other.

The international legal order 1919–2019

2019 ◽  
Vol 33 (2) ◽  
pp. 157-171 ◽  
Author(s):  
Terry Nardin
Keyword(s):  
International Law ◽  
Legal Order ◽  
Individual Responsibility ◽  
Crimes Against Humanity ◽  
Past Century ◽  
Trade And The Environment ◽  
New States ◽  
International Legal Order ◽  
New Institutions ◽  
Traditional Understanding

Despite repeated claims during the past century that the international legal order has been radically transformed, the contours of that order are in many ways the same in 2019 as they were in 1919. New laws govern international institutions, human rights, trade, and the environment and new institutions have emerged that affect how international law is interpreted and applied. War has lost legitimacy as a tool of foreign policy and individual responsibility for aggression and crimes against humanity has been affirmed. Yet these changes build on ideas and practices that may have been rudimentary but were not absent a century ago. Underlying them are persistent differences involving a shifting cast of old and new states as well as differences between local and universal ideals and between instrumental and noninstrumental conceptions of law. The traditional understanding of state sovereignty on which the international legal order rests has been qualified but not discarded, and its persistence confirms that the system it orders remains a system of states.

scholarly journals FRAGMENTATION OF INTERNATIONAL LAW AS A FACTOR OF FORMATION OF THE MODERN INTERNATIONAL LAW ORDER

2021 ◽  
Vol 1 (2) ◽  
Author(s):  
Anastasiia O. Perfilieva ◽  
Keyword(s):  
International Law ◽  
Regional Integration ◽  
Legal Order ◽  
International Treaties ◽  
Regional Aspect ◽  
International Environment ◽  
Starting Point ◽  
International Legal Order ◽  
Fragmentation Of International Law ◽  
Current Stage

The article is devoted to the peculiarities of the formation of the international legal order in the process of evolution of international law. The development of international law is directly determined by the specifics of civilizational development and changes that occur in the international environment under the influence of globalization and regionalization. Globalization and regionalization are manifested respectively in the processes of unification and fragmentation of international law, becoming the content of the specifics of the processes in international legal relations at the current stage. The analysis of modern international legal relations, formed as a result of the principles and norms of international law in the context of globalization and regionalization, gives grounds to identify the manifestations of localization in international legal relations as a model of fragmentation of international law. The concept of fragmentation enters the science of international law at the beginning of the XXI century. Thanks to the discourse initiated by the UN Commission on International Law and is gradually gaining paradigmatic significance. Paradigmatic transformations of the science of international law are inevitable in the conditions of intensive development of international legal relations and provide further progress of science. The starting point of this process was the rejection of the unequivocally negativism interpretation of fragmentation as the opposite of integration and unification, which contradicts globalization. Therefore, today, in addition to the widely developed general international treaty and legal unification of domestic law, its regional unification is becoming more and more developed. Regional unification is also international, but it has a regional aspect, primarily related to the level of regional interstate integration. Integration practices are reflected in the relevant international treaties, especially those governing the establishment and operation of regional international associations. These associations are the organizational and legal shell for the development of regional international legal unification processes. Regionalization of international law, as well as its fragmentation in treatyformed international regions, is associated with the level and depth of relevant regional integration, which is a priority for states, and international law provides integration processes as a necessary tool for their regulation. Fragmentation is a natural process in the evolution of international law and is seen as a factor in the creation of modern international law. The international legal order has a contractual nature and a complex multicomponent structure. The process of forming the structure of the international legal order on the basis of a complex intertwining of uneven processes of regionalization and fragmentation is not yet complete. In the doctrine of international law, the complexity of the international legal order is determined from the standpoint of the number of elements and components, as well as their number and the relationship between them and the environment in which the legal order exists. It is obvious that the current stage of civilizational development is characterized by complexity and multidimensionality, which are reflected in the practices of creating a new international legal order based on the changes taking place in international legal relations. Therefore, fragmentation as a factor in the development of international legal relations becomes a factor in the formation of modern international legal order and determines its features.

scholarly journals “Fantasy Upon Fantasy”: Some Reflections on Dworkin’s Philosophy of International Law

Jus Cogens ◽  
2021 ◽  
Author(s):  
John Tasioulas
Keyword(s):  
International Law ◽  
John Rawls ◽  
Dual Function ◽  
Law Of Peoples ◽  
Liberal Democratic ◽  
International Court ◽  
International Legal Order ◽  
Theory Of Law ◽  
The One ◽  
Core Part

AbstractThis article offers a critique of Ronald Dworkin’s article “A New Philosophy for International Law”, (Philos Public Aff 41: 1–30, 2013). It begins by showing that Dworkin’s moralised theory of law is built on two highly questionable background assumptions. On the one hand, a descriptively implausible characterisation of a positivist-voluntarist view of international law as the reigning “orthodoxy”. On the other hand, the methodologically questionable assumption that a theory of international law must discharge the dual function of explaining the validity of international law in a manner that underwrites its presumptive legitimacy. In its core part, the article then offers a sustained criticism of Dworkin’s moralised account of the validity and legitimacy of international law. Various problems are identified with the “principle of salience” that Dworkin offers in place of consent as a ground for international law. A key concern is the difficulties that stem from Dworkin’s willingness to proceed on the “fantasy” assumption that his theory needs to get off the ground, i.e. that there is an international court with compulsory jurisdiction and reliable mechanisms for enforcing its judgements. Finally, the article concludes with some thoughts on how Dworkin’s “fantasy-based” approach led him to over-estimate the degree to which international law can be a vehicle for the global spread of liberal democratic values. More minimalist ambitions for international legal order, along the lines suggested by John Rawls in The Law of Peoples, seem more realistic.

China and International Adjudication

2021 ◽  
Author(s):  
Thomas S. Eder
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Case Law ◽  
Comprehensive Analysis ◽  
Legal Order ◽  
Great Power ◽  
Law Of The Sea ◽  
International Legal Order ◽  
International Adjudication

China aims to become a “leader country” in international law that “guides” the international legal order. Delivering the first comprehensive analysis of case law and Chinese academic debates from 2002 to 2018, this book shows that gradually increased engagement with international adjudication is part of a broad effort to consolidate China’s economic and political gains, and regain great power status. It covers trade, investment, territorial and law of the sea matters – including the South China Sea disputes – and delineates a decades-long process between caution and ambition. Both in debate patterns and in actual engagement, this book finds remarkable similarities in all covered fields of law, merely the timetables differ.

scholarly journals Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes Again in the Marshall Islands Case

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 81-87 ◽  
Author(s):  
Andrea Bianchi
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Third Parties ◽  
Legal Order ◽  
Marshall Islands ◽  
Young Researcher ◽  
International Treaty ◽  
Rubber Stamp ◽  
International Legal Order ◽  
State Of Affairs

My very first publication, admittedly written in a language that many AJIL Unbound readers might be unable or unwilling to read, was an essay on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its effects vis-à-vis third parties. Already back then, I found it difficult to justify how an international treaty could rubber-stamp such a highly uneven state of affairs. The overt acknowledgement of the discrimination between nuclear and nonnuclear states, the hypocrisy about “unofficial” nuclear states, and the Article VI obligation for nuclear states to negotiate effective measures of disarmament, largely ignored in the first twenty years of the treaty, were all elements that contributed to my perception of unfairness, if not blatant injustice. As a young researcher approaching international law with the enthusiasm of the neophyte, however, this looked like a little anomaly in an otherwise fair and equitable international legal order. It did not set off warning bells about the system as such. After all, international law was geared, at least in my eyes, towards enhancing the wellbeing of humanity. It must have been so. And it is not that I leaned particularly on the idealistic side; it seemed normal to me … at the time.

scholarly journals Die Zukunft des Völkerrechts

2017 ◽  
Vol 26 ◽  
pp. 3 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
World Order ◽  
Legal Order ◽  
Positive Side ◽  
Normative Growth ◽  
International Legal Order ◽  
The Rich ◽  
Fragmentation Of International Law

The international legal order today constitutes a truly universal legal system. It has received guiding principles through the United Nations Charter: ever since this ‘Constitution for the world’ began operating, sovereign equality of states, self‑determination of peoples, and human rights have been key components of this architecture, which has reached a state of ‘conceptual unity’ belying the talk of ‘fragmentation’ of international law that so fascinated scholars in their debates only a short while ago. The great peace treaties of 1648, 1815, and 1919, as Euro‑centric instruments influenced by the interests of the dominant powers, could not bring about a peaceful world order. After World War II, it was, in particular, the inclusion of the newly independent states in the legislative processes that has conferred an unchallenged degree of legitimacy on international law. Regrettably, its effectiveness has not kept pace with its normative growth. Some islands of stability can be identified. On the positive side, one can note a growing trend to entrust the settlement of disputes to formal procedures. Yet the integration of human rights in international law – a step of moral advancement that proceeds from the simple recognition that, precisely in the interest of world peace, domains of domestic and international matters cannot be separated one from the other as neatly as postulated by the classic doctrine of international law – has placed enormous obstacles before international law. It must be expected that the demand for more justice on the part of developing nations will subject the international legal order to even greater strain in the near future. Currently, chances are low that the issue of migration from the poorer South to the ‘rich’ North can be resolved.

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